Anon

Dear Assistant Secretary,
I write to you as in regards to the Consultation on implementation of model drug schedules for Commonwealth serious drug offences.
I am a concerned stakeholder, being an ethnobotanist (someone who studies the uses of plants by humans, including the chemistry and pharmacology of plants), avid gardener, and amateur herbalist. I have a keen interest in human rights and liberties, and due to this combination, I have noticed many things in the proposed legislation under discussion that I find alarming and poorly informed. My primary interest is with the plant offences, and extends to some of the drug and precursor offences due to the way in which they may be interpreted to apply to plants or plant products which should not be subject to criminal legislation.
Please see the following pages for my submission.

Introductory comments
Background, point 11 states “consideration needs to be given to the impact that implementation of the model schedules might have on the existing Commonwealth regulatory framework.” The main impact would be to give law enforcement a hugely expanded task that is not achievable, enforceable or affordable in practice, and to strain the resources of the police, judicial and prison systems.
Background, point 23 acknowledges a need to “establish the extent to which the proposal is likely to involve an impact on business and individuals or the economy”. It is clear that key elements of the proposal involving plants will definitely have a strong negative impact on a large number of nurseries, non-criminal individuals, and the economy (largely through costly implementation and attempted enforcement of the proposal, rather than due to business or personal loss, which would nonetheless occur and be highly significant to those affected). My following comments explain my response to those two introductory points.

Part III Plant Offences
Some of the offences listed here are of concern due to vaguely defined questions of intent and/or reasonable suspicion, coupled with unreasonably harsh sentencing that surpasses jail terms commonly handed down for violent crimes such as rape and aggravated assault. In some cases, convicted murderers have walked free after serving sentences shorter than those suggested for cultivating, selling or possessing certain plants which are of no established threat to the populace.
Government response to early local media reports on this discussion paper stated that this legislation re: plants, was only about targeting commercial cultivation for the illicit drug market. However, the wording used in the model legislation makes no attempt to define how suspected ‘commercial’ cultivation would be differentiated from non-commercial cultivation, or indeed cultivation by cactus farms who supply the legal nursery market in cacti, for example, which is commercial but hardly illicit unless the government makes it so. Currently legal nursery sales would be illegalised under the offence “Selling controlled plants within Australia”. It also leaves room for simple possession of plant material or any living plants to be an offense, without the need for there to be any sign of a commercial cultivation operation, as is the case with plants already scheduled such as Cannabis. Division 303.7 of the Criminal Code Act 1995 states that where trafficable quantities are involved, commercial intent is assumed, unless the defendant can prove otherwise, which being based on assumed intent, is something that is logically impossible for the defendant to prove. The fact that these offences are not even mentioned in the discussion paper is a glaring oversight, and gives the false impression that personal possession or cultivation of these plants would still be legal.
Furthermore, the creation of offences for possessing “equipment or instructions for commercial cultivation” is unreasonable, and so poorly defined that it applies to garden implements such as shovels and pots. This displays the ignorance of the schedulers regarding horticulture. Information on cultivating all of these plants, whether scheduled or proposed to be scheduled, is freely available in libraries or on the internet. There is often no significant difference between how a single plant of a given species is cultivated, and how many plants of that species can be cultivated. It is simply a matter of doing things on a larger scale, using horticultural techniques common to many different plants. For cacti, for example, cultivation instructions are often more or less the same for most species from a particular climate. Therefore almost any book on horticulture, or any gardening equipment, would become an illicit possession, with accompanying penalties of up to 7 years prison! This is clearly not reasonable in an open society such as ours that values freedom of speech and freedom of information. No one should be subject to prosecution for merely possessing information, which may not ever be put to use, especially where the recommended prison sentence is harsher than what a violent criminal offender may be subject to. It should never be the place of the law to assume criminal intent on the basis of the contents of an individual’s garden, bookshelf or computer, or the nature of their intellectual/academic curiosity, in the absence of irrefutable incriminating evidence.
Question E
(i) An expanded list of plants is not appropriate for use in relation to plant offences. The world is full of psychoactive plants, and once people start trying to ban them all just because they exist we will end up with a very bare planet with a large portion of the populace incarcerated or crippled by fines. There is no evidence that any of the new plants proposed to be added to Schedule II are a sufficient threat to anything that to possess, cultivate, or possess information about their cultivation needs to be criminalised. In addition, the model schedule claims to be moving to meet Australia’s Drug Convention obligations. However, in 2001 the secretary of the International Narcotics Control Board stated [in evidence for a court case in the Netherlands, regarding ‘ayahuasca’ tea which contains dimethyltryptamine (DMT)] “preparations (eg. decoctions) made of these plants, including ayahuasca are not under international control and, therefore, not subject to any of the articles of the 1971 Convention.” [See copy attached at end of subsmission.] Australia is therefore under no such international obligation to schedule plants or plant preparations simply because they may contain chemicals which are scheduled. The fact that the chemicals are already scheduled, and that extracting them or trafficking them in a purified chemical form is already an offence, should be sufficient to control any real criminal market.
The burden on law enforcement to enforce the laws regarding these new plant listings will be unreasonable. Contrary to the statement in point 57, the schedule does not add “an additional eight plants” – it adds four species specifically named, as well as genus categories and DMT- or mescaline-containing categories that collectively comprise potentially hundreds or even thousands of species, many of which are not readily recognisable to the layperson and would require the expensive hire of a professional botanist to identify plants (at the current specialist contractor rate of around $1000 per day, I have been informed). I will discuss the facts in relation to each item for Part B of Schedule II.
8) Mescaline is actually a very common chemical in the cactus family. It is often found only in small amounts but levels can be highly variable. Scheduling any plant containing mescaline would mean seizing and destroying half or more of the collection of every cactus grower/collector in the country, including botanical gardens. Many of these plants are much loved by cactus enthusiasts, regardless of their chemical content. For example, common Echinopsis and Trichocereus species which also happen to contain mescaline are very popular in horticulture due to their less prominent spines, attractive skin, beautiful and huge aromatic flowers, as well as their hardiness to Australian climatic conditions. Lophophora, which are explicitly included here by name, are amongst the most highly prized species amongst cactus lovers, being beautiful, tricky to cultivate, rare, very slow-growing and with an interesting cultural, folkloric and religious background (as with Echinopsis species, and indeed, many other cacti). They take so long to grow that there are not many people who would even consider chopping them up to extract mescaline. People tend to grow them solely for the love of the plants, and will strongly resist attempts to have them seized. I know many cactus growers who, already reeling from the loss of much of their collections due to the recent floods, have been shocked by the thought that much of what they have left could be taken and destroyed. A sampling of appalled responses at the last meeting of my local Cactus & Succulent Society – “What will we have left?” “Haven’t the government got anything better to do?” “Surely there’s not such a problem that they have to ban all these plants?” Indeed, in reference to this last question, there is not.
It is well worth noting that not only do mescaline-containing cacti have well-documented and legitimate uses in spiritual healing practices in the countries from which they originate, they also have been documented to be a positive social influence in cultures where these uses are respected. Also, Lophophora species are critically endangered in their natural range, and any move to seize and destroy plants from growers would be a grave error. Australia’s cactus collections constitute scientifically and aesthetically valuable genetic storehouses that have, in many cases, been growing in this country for approximately 100 years. In any case, I have found no evidence of any illicit market in mescaline extracted from cacti, and if one exists it must be on such a tiny scale that it is of no practical concern. Some tiny minority of Australians certainly consume some of these cacti occasionally in private, but there is no evidence of any social or personal harm resulting. In fact, it has become clear through conversations and research that even amongst people who enjoy psychotropic drugs, mescaline-containing cacti are not popular, and are unlikely to ever become popular, because people dislike consuming large amounts of slimy, very bad-tasting cactus flesh that will make them nauseous and vomit. Regarding pure mescaline itself, which is reportedly difficult to extract from cacti and also likely to induce nausea and vomiting, the known level of use from drug surveys is tiny. Of that tiny group, many reports of its use consist of people who thought they had been sold mescaline, but were actually sold LSD. This means the actual level of illicit use of purified mescaline is on such a miniscule scale that it should be of no practical concern.
Nurseries would also be negatively affected, from specialist cactus nurseries to big chain stores such as Mitre 10. As already stated, many of the affected plants are very popular in horticulture and have been cultivated in this country for roughly a century.
9) DMT is even more problematic for this schedule. DMT is actually very widespread in the natural world, across many different plant and animal families, and is also produced in the human brain as a neurotransmitter. Banning cultivation or possession of any plant containing DMT would be unenforceable. Firstly, take into account that Australia is unique in our abundance of native Acacia species, or wattles, which are integral to our ecosystem and have great importance to indigenous Australians for food, fibre, medicine and spiritual purposes. They are our national floral emblem. They grow wild across most of the country; some are endangered and only exist in small isolated populations. Some are cultivated en masse and planted by Landcare and revegetation groups, as well as councils. And many of them have been found to contain DMT. Under the model schedule, these would entail the majority of plants containing DMT that would be encountered, and it should be clear by now that enforcing that would be impossible without enormous community uproar. It is ironic that rather than naming Acacia as the explicit example, the schedule list refers to “any plant of the species Piptadenia Peregrine”, a South American tree which is difficult to grow outside of its native range, and extremely unlikely to be encountered growing successfully here, rather than the most abundant local example of Acacia. Also it is worth pointing out the botanical ignorance of the writers of this schedule, as Piptadenia peregrina (the correct spelling, and with lower-case species name) has not been recognised as the correct name for decades, as a small amount of research would have shown. I am dismayed that such scheduling for plants is being written by people who so clearly have practically no knowledge of the actual plants they are writing about, or their ancient cultural and spiritual uses, let alone the vagaries of natural plant chemistry.
DMT in plants is really all over the place; we might as well accept that, because it is a fact of life. Even if ignoring the many known (and many, many more currently undiscovered) DMT-containing plants more normally found in other countries of the world, the remaining examples in Australia, besides Acacia, are numerous and equally problematic to control. For example, there are species of Phalaris grass, grown here for generations as pasture forage grasses for stock animals, all of which contain DMT. There are vast fields full of DMT-containing Phalaris in rural and agricultural areas, which would be impossible to eradicate without enormous cost, and they also commonly grow as weeds in urban areas. Phragmites australis, our common reed, also contains DMT, and is both abundant and difficult to eradicate (in any case, such eradication would be ecologically unwise). There are also other native plants from other genera known to contain DMT (such as Petalostylis, Swainsonia, Pandanus, and tentatively Eucalyptus) and certainly many more that are not yet known of. It is not rational to seek to illegalise the cultivation or possession of plants which are so widespread and wild-growing, and which in any case, someone wishing to use them for drug purposes can just go out into the bush and find what they are after. In criminalising these plants you will be advertising that fact, whereas until now, it had been known only to a small number of people.
Finally, it is well known that DMT-containing plants, where used for their psychoactive properties, are used solely for religious or spiritual reasons, and they have been used as such for thousands of years. People using them for any other reasons tend not to like them, and will not try them again. In addition, there is often nausea and sometimes vomiting involved, which are all factors that point to these plants – and also DMT itself – as extremely unlikely to ever be popular enough to lead to a large or profitable illicit market. As with mescaline-containing plants, these appear to be only used by a very small number of people in Australia. They hardly warrant scheduling or the draconian penalties that are to be applied, being irrelevant commodities to ‘organised crime’. Nurseries would also be negatively affected, in particular native nurseries.
10) Salvia divinorum has already been scheduled [Schedule 9] in Australia under the Standard for the Uniform Scheduling of Drugs and Poisons [SUSDP]. However this seems to have taken place not due to any harm that was resulting from its use, but simply because it was legal, widely available, strongly effective, and some people were using it and liking it. Apparently most people would try it once or twice and then their curiosity would be satisfied. I do not agree that extracts of the plant should be permitted to be sold commercially, but possession of these or the plants themselves should not be an offence. Reports of the pharmacological activity of the plant certainly suggest it should be used, if at all, with certain stipulations of caution, although the effects are very brief and there are no reports of anyone coming to harm, or harming anyone else, under the influence of this plant. Where it is from in a remote area of Mexico, it is a highly venerated plant that is used for healing and religious purposes. It is a rare and unique plant that should be preserved in cultivation due to its extreme rarity in the wild. For scientific testimony against its criminalisation, please see the documents linked to at this web site - http://sagewisdom.org/griffithsandjohnson.html
11) Mitragyna speciosa only grows in tropical regions and is not at all commonly cultivated in Australia. Furthermore, people who use the plant in Thailand report that it tastes very bad. Chewing mouthfuls of bad-tasting plant matter is not something that most Australians care to partake in, let alone make a habit of, no matter what the effect. Even chewing tobacco is a very small niche market here (and due to the spitting, perhaps even less socially acceptable than smoking), and the quantities chewed at one time are far smaller than with something like Mitragyna speciosa. It is not realistic to envision any illicit market in this plant existing in Australia now or in the future, except on a miniscule scale – and again, this would only be an illicit market due to the proposed federal scheduling of the plant. In Southeast Asia this plant also has medicinal uses, and has potential as a treatment in opiate withdrawal.
12) Catha edulis is a socially important herb to people from some African and Middle Eastern nations such as Somalia and Yemen. Its use is primarily social and work-related in a similar way to tea or coffee. Its effects were greatly exaggerated and falsified by the western media when the US was involved in a war in Somalia, for P.R. reasons, and this false image has stuck. As another bad-tasting herb that is chewed in large wads, and one that is only useful when freshly picked, it is highly unlikely to appeal to a wider range of people in Australia, or to be involved in any criminal market beyond that of the government’s creation. It is important to note that this plant is not used in the production of more potently-acting synthetic cathinone analogues which have had some minor popularity in recent years, and that cathinone itself (the main active chemical in the plant) is highly unstable and difficult to extract. As per the clarification from the secretary of the International Narcotics Control Board mentioned above, Australia’s obligations under the United Nations Convention on Psychotropic Substances (1971) do not extend to the illegalisation of plants other than those already listed (Papaver somniferum, Erythroxylum species containing cocaine, Cannabis); it refers to the pure chemicals cathine and cathinone only. Incidentally, the International Conventions of which Australia is a signatory were written with far greater scientific rigour, validity and clarity than anything seen in this current model drug schedule discussion paper.
13) Ephedra species which contain ephedrine – in other words, nearly all Ephedra species. These are not commonly cultivated in Australia and do not grow abundantly or quickly enough to realistically be of much use to criminal drug gangs (I presume this plant scheduling is intended to combat sources of precursors for amphetamines, as it has become well known that pharmaceutical ephedrine and pseudoephedrine are used illicitly for this purpose). The main use of Ephedra species, besides being attractive and unusual horticultural plants, is in medicine, being integral to Chinese Traditional Medicine, as well as herbal medicine traditions of India and other Asian and American countries. They are also sacred plants in some ancient religions and again, have been used by humans for thousands of years with a high degree of safety. Any criminal use of these plants would involve massive shipments of plant material entering from another country, and law enforcement would be best applied to such cases, rather than prohibiting domestic, non-criminal cultivation on a much smaller scale.
14, 15) Brugmansia species are very commonly grown in horticulture and are abundant in gardens across much of the country. They are much loved plants with beautiful flowers, and gardeners will not be pleased to part with them under law. In South America they have ancient histories of use for healing and shamanism, and are medically valuable with careful use. It is well known that young people sometimes consume these plants for their hallucinogenic effects. However, although these effects can be drastic and toxicologically risky, people who consume them in most cases suffer no lasting ill-effects and will also never try the plants again. It is important to examine the reasons young people experiment with such dangerous and generally unpleasant plants as Brugmansia. Based on people I have spoken with on this topic since my own youth, the reasons are clear. People consume these plants because they are legal, available and free, but only as a second choice, because the hallucinogens with more pleasant and vastly safer pharmacological effects are all illegal, and therefore more difficult for younger people to obtain. If Brugmansia was removed from suburbia, these same people would seek out other potential readily available ‘highs’ that are even more dangerous and have lasting toxic effects, such as sniffing solvents.
Datura species can be considered in the same way as Brugmansia, due to similar or identical chemistry and close botanical relation. They also have ancient uses for initiation, shamanism, religion and medicine in many parts of the world. Rather than being cultivated (although some species are, for their beautiful flowers), Datura species are most commonly encountered in Australia as a weed. For either Datura or Brugmansia, it is inconceivable that any illicit market could arise, except as a horticultural black market created solely by the scheduling of these plants, and in any case their use by humans is already controlled by the TGA. People are not prepared to pay for them for use as drugs – they are used only by a tiny minority, usually only once, solely because they are free and common. Eradication or illegalisation are unrealistic, and the suggestion that these plants have or could have any relevance to the criminal economy is ludicrous. I do not argue that these plants are particularly safe to use, but I do argue that safety does not appear to be a motive behind this legislation. Most gardens contain many species of plants that are potentially lethal, or can make a person very sick. A sensible society recognises this as a part of life on this planet, informs of potential risk, and leaves it at that. The only difference with Brugmansia and Datura is that they can be used by people for psychoactive effects, raising the question – is this legislation about protecting the populace from real threats, or preventing people from ‘getting high’ in non-alcoholic and tax-free ways?
(ii) Yes, khat should be omitted from the model schedules; see my arguments above. It was noted in the discussion paper that the Intergovernmental Committee of Drugs resolved in 2008 that current controls were adequate, despite inconsistency between states and territories. I see no reason why controls should be national if some states and territories have not deemed it to be a cause for legislative concern. Indeed, states which already treat this as a controlled plant should reconsider their current stance unless evidence can be provided that this plant is truly a threat, or of any meaningful consequence to organised crime in these jurisdictions.

Part II Drug Offences; Part IV Precursor Offences
Drug and precursor definitions, as referred to in these sections, and Attachments 2.2 and 2.5 [incorrectly listed in the discussion paper as 2.4, on page 14], raise some concerns.
Page 14, point 66 questions “whether: the definition of ‘precursor’ in the model schedule captures all substances requiring prohibition”. The real issue is that it captures so many substances that are difficult to argue require prohibition at all, except in some cases in pure, large quantities only. The same problem applies to the definitions used for ‘drug’ and some of the harmless substances inadvertently captured by those definitions.
Extended definitions used in the schedule [such as “any form of a drug [...] whether natural or synthetic, and the salts, derivatives and isomers of that drug”, “any substance having a substantially similar chemical structure to the drug”, and “any drug contained in or mixed with another substance”; and for precursors, “any preparation, admixture, extract or other substance”] are highly problematic, because they are so broad, vague and all-encompassing. On page 15, point 72, it is even stated that the intention is that “all forms of precursors are captured.” Given the lack of any restricting clauses for how far down the line of intermediate steps a substance must be to be considered a precursor to a controlled drug, or indeed to another controlled precursor, to do this you would have to ban carbon, nitrogen, oxygen, and hydrogen for a start, the basic elements which are everywhere; hydrogen itself is already on your list of controlled precursors. This proposed legislation displays a profound ignorance of the chemistry of the natural world. These terms can easily be interpreted to include a vast number of benign, naturally occurring chemicals and common reagents, as well as any plant or herbal preparation that contains them in any amount. As such, plants and natural chemicals that are not actually scheduled, and pose no risk of use in the illicit drug trade, could be regarded as falling within this legislation. The Criminal Code Act 1995 specifically includes “a growing plant” amongst substances or things that can be considered to be a controlled precursor, and the model legislation does not include any new definitions that explicitly exclude this interpretation. Medical and industrial chemistry would almost grind to a halt if forced to fully comply with these laws, and their chemical suppliers would risk going out of business.
It is an unspoken assumption that for quantities below trafficable (mixed), possession charges could still be laid; division 308 possession offences refer only to “any quantity”, and not to trafficable quantities or above. In the case of controlled precursors, the discussion paper [under Question M] suggests that the prosecution must provide proof of intent for manufacture of a controlled drug; however, it appears that for presumed commercial cultivation of a controlled plant, the onus of proof lies instead with the defendant, although this is not mentioned in the discussion paper. Given the drastic maximum prison sentences recommended, it is essential that proof of commercial criminal activity in any case be firmly established, rather than being presumed at the discretion of the prosecution. It is logically impossible to disprove intent, and such an impossible burden of proof being laid on a defendant is contrary to principles of fairness in any reasonable society and tantamount to legal pursuit of ‘thought crimes’.
It is important that legislation is worded and defined in such a way that it is usefully applicable in the real world. As currently defined, this legislation could be interpreted by an overzealous prosecution to apply to much of the natural world, and therefore needs revision to remove this unrealistically broad scope.
Some examples...
*Most Acacia species (wattles) which do not contain N,N-dimethltryptamine [DMT; Schedule I], or the common non-psychoactive derivatives such as tryptamine and N-methyltryptamine [both Schedule I, as “tryptamines (not otherwise listed in this schedule)”], instead contain phenethylamine alkaloids [Schedule I, as “phenethylamines (not otherwise listed in this schedule)”]. Although these alkaloids are not known to be psychoactive, and are very common in nature, they would still fall under the schedule. Therefore, not only would DMT-containing Acacias be illegal to cultivate commercially or possess, but so would most wattles in the country.
*Fly agaric mushrooms (Amanita muscaria), the common red-capped mushroom with white spots, grow spontaneously in many parts of Australia, and people often pick them for their ornamental attraction. I believe offering them for consumption is controlled by the TGA. However, including muscimol and anything that contains it on Schedule I means that possessing these mushrooms would be a serious offence, which is unreasonable. I am not aware that any illicit market exists for muscimol, or the mushrooms (which are currently legal to possess), and scheduling them should require some solid evidence to justify it.
*Would require banning the entire poppy family, which includes many hundreds of species, on the basis that they contain analogues or derivatives of morphine.
*Would require banning potatoes and some other common food plants because of their content of diazepam [Schedule I] and its natural derivatives in small amounts. Similarly, most common food plants contain some level of chemicals covered by this schedule under the extended terms for tryptamines, phenethylamines and “harmines”. Incidentally, “harmines” are not a class of chemical. Harmine itself is a beta-carboline alkaloid. Banning all beta-carboline, tryptamine and phenethylamine alkaloids or anything containing them would encompass a huge array of common plants, including foods, beverages food products, as well as the chemistry of the human brain. Some food plants thus affected include banana, citrus fruit, plum, eggplant, apple, barley, wheat, tomato, passionfruit, sweet corn... I could go on, but I trust the point has been made.
This problem gets even more ridiculous with the Controlled Precursors – Schedule III. The inclusion here of very common natural chemicals, and the wording of definitions that allows for extremely broad and inclusive interpretation, unintentionally captures many things that no one would think of as being useful for the illicit drug trade. Here are some examples...
*cheese and other dairy products [calcium]
*urine [ammonia, phosphorous]
*water [hydrogen]
*hydrogen fuel cells [hydrogen, of course]
*bitter almonds, cherry pits [benzaldehyde]
*dietary mineral supplements [magnesium]
*first-aid kits [iodine]
*more or less every food or plant [phenylalanine, potassium, phosphorous, sodium, magnesium]
*table salt [sodium, as sodium chloride]
*black pepper [eugenol, methyleugenol, safrole, piperidine]
*Eucalyptus oil [methyleugenol]
etc.
Recommendations: To limit the definitions used in this schedule for “drug” and “precursor”, ensuring that plants not otherwise scheduled, and other mixed quantities with legitimate uses, are explicitly excluded from criminal legislation. Remove harmines, phenethylamines and tryptamines “not otherwise listed in this schedule” from the list.
Question B
(i) Yes.
(ii) No. Refer to arguments listed above.
Question C
(i) Yes, to avoid confusion.
(ii) No, the law should seek higher penalties only in relation to facts, not just because it can.
(iii) No. Refer to arguments above regarding definitions.

Point 48 refers to drugs “where there is no established Australian market and no evidence of potential development of such a market”. This raises the question of why the government is seeking to legislate against some drugs or plants that are not, and are not in danger of becoming, a real problem, and therefore turning them into black market commodities? It is also stated that for such cases “quantities are not specified”, which effectively means there is no lower limit for trafficable quantities for substances, or plants containing substances, which are not even known to be a cause for illicit concern, by default being treated on the same level as trafficking heroin or cocaine in large quantity. Page 3, point 7 also states that “the model schedules were designed to provide comprehensive coverage of drugs, plants and precursors for which illicit markets exist, or have the potential to develop” [underline mine]; in other words, the government plans to pre-emptively enforce against plants which may be used as drugs, and many others that probably could not, regardless of whether they are harmful or pose a danger to society, and regardless of the fact that as they are currently legal, there is no chance of an illicit market developing! The moment they are made illegal, you have created a black market for these things where before there was none. In addition, you will have made many people aware of these plants who otherwise would never have known they existed, or that they contained such chemicals. In other words, you will have both created a new black market product, and created a new prospective market for it at the same time by advertising the existence of otherwise highly obscure substances and plants. This seems counter-productive and irrational. These legal anomalies cannot be justified.
Question D
(i) For those drugs listed in Attachment 2.3, probably yes. However there is cause for concern with the possible misapplication of trafficable (mixed) quantities specified for the proposed model, as pure quantities are not listed.
(ii) Yes; otherwise people could be prosecuted for trafficking or worse, when the pure amount of controlled drug minus contaminants, dilutants or carrier material (eg. LSD on paper or cardboard squares) is actually only worthy of a possession charge.
(iii) Yes; see above. This is not a matter of weakening drug laws, but of making them fair, realistic and science- and evidence-based.
Question H
(i) No. There are many substances listed which have common household or hobby uses, and many substances which are not actually true precursors in this context. The wider group of associated forms of the named precursors includes even more common and innocuous substances.
(ii) Yes.
Question I
(i) Yes, for all of them, based on the relevant facts and not just arbitrary figures.

Part VI Legitimate Use Defences
Point 87 here directly raises an important issue – “whether it is appropriate that a substance that is capable of licit use is criminalised.” This also ignores the point that illicit use is only a possibility when something has been criminalised to begin with.
In the case of the new plants introduced in the model schedule, no legitimate uses should require protection, as these plants should be removed from the schedule and remain legal, as they currently are in most Australian jurisdictions. In the case of plants already scheduled, legitimate uses definitely exist, particularly in medical research; and in the case of Cannabis, medicine, fibre, vegetable oil and ethanol production. However, how these legitimate uses should be provided for in the context of law is not my area of expertise.
Incidentally, it is disappointing that a meaningless statement such as “all genera of cannabis are controlled plants” displays a profound ignorance of basic biological classification. Cannabis is the genus, and the statement should read “all species of the genus Cannabis”, or at the very least, “all species of Cannabis”.
A further point to raise regards the offence “possessing [...] instructions for commercial manufacture of controlled drugs”. Anyone who studies plant chemistry accesses legitimate published scientific literature, such as papers in science journals, which describe extraction of chemicals from plant matter, and sometimes, synthesis for the purpose of verifying the identity of a plant component. Furthermore, methods of extraction from plants are generally similar, and standard extraction methods can be applied for numerous different chemicals. Such methods are not an esoteric secret, and as with science journals are freely accessible, as they should be. It is important that people with academic interests in plant chemistry are not criminalised because of some of the literature in their files. This charge should omit mention of instructions, as it clashes with the valued principle of freedom of information and freedom of thought. If a person is actually engaged in illicit manufacture, there should be ample legitimate evidence available with which to provide a conviction, without the need to criminalise scientific literature. Otherwise, you will have to invade the libraries of every university in the country, removing pages from their books and journals, as well as prosecuting individuals for their intellectual curiosity and contents of personal bookshelves. That is clearly not realistic or desirable, but it is a logical extension of such an offense and should be taken seriously for its potential to embarrass government and law enforcement, as with the similarly worded offences regarding gardening equipment and instructions.
Question L
(i) Absolutely; see my arguments above.
Question M
(i) Yes; see my arguments above.

Concluding remarks
In closing, it is shameful that the public consultation process for this proposed legislation has taken place in such a secretive manner. The only public notification was a posting on the Attorney General’s web site, posted on Christmas Eve 2010, hardly a reasonable date to quietly release a call for submissions. If it were not for the diligent attention of one or two concerned people, who very effectively began to spread public awareness after noticing this internet posting some weeks later, almost no one outside of government would have known about it until the legislation was proposed as a bill in parliament. Certainly, no effort has been made by any office of government to notify the most relevant known and contactable stakeholders in relation to the scheduling of new plants and plant offences, ie. plant nurseries, botanical gardens, botanists, and horticultural societies. All of those approached by myself were previously unaware of these proposed laws which would affect them dramatically. Whatever stakeholders have been contacted or consulted by any government office remain undisclosed to the public.
It is also unusual that, contrary to other similar discussion papers from the past, the identities of the Committee members who have drafted this discussion paper and model legislation are not to be found anywhere in the discussion paper. Coupled with the many logical shortcomings of the paper, and dubious academic veracity regarding plant and biochemical knowledge (as discussed in this submission), this secrecy only serves to further cast serious doubt on the credentials of the Committee members and their ability to draft legislation in this area that is fair and practical in the real world. Furthermore, I have learned that in the case of this discussion paper, submissions will not be published or made available publicly, which is counter to standard practice, and averse to standards expected by and promised to the public, namely transparency in government.
It is relevant to note that although the model schedules have already been passed in South Australia, they do not appear to be known of by most of the public in that state, and again, a true public consultation process does not appear to have taken place beyond a small group of insiders appointed by government. It is positive that SA has not, so far as is publicly known, pursued enforcement of these laws in relation to plants other than Cannabis, and may reflect the fact that there is indeed no genuine illicit market for any of these newly listed plants, and a recognition that enforcement is not practical. It is certainly known that many of the plants discussed here, particularly cacti, are widely cultivated in SA. However, the fact that the laws are in place and can be called upon at any time to be used discriminately against individuals who cultivate such plants for personal reasons, or against nurseries who do not appear to have been informed that selling or cultivating certain common plants is now a serious drug offence, is cause for concern.
I recommend that these extended plant listings in SA law be repealed, and that their application on a Federal level be dismissed, for the reasons given throughout this submission. Most importantly, I recommend that the Federal model schedules and accompanying lists of newly-added plants be discarded as unworkable; clauses criminalising possession of certain information be repealed; and maximum sentencing for these and other plant-related offences be scaled down to reflect the actual severity of the crimes when compared to what most people would consider as ‘real crimes’.

Sincerely,

[Name and address withheld]
Note: Attachment 1 follows, see next page

ATTACHMENT 1
Public access copy of fax from Herbert Schaepe, Secretary of the International Narcotics Control Board
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UNITED NATIONS NATIONS UNIES
INTERNATIONAL NARCOTICS INCB OICS ORGANE INTERNATIONAL DE
CONTROL BOARD CONTRÔLE DES STUPÉFIANTS
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A : Mr. Lousberg, Chef Date : 17 January 2001
Adresse : Inspectorate of Health Care, Ministry of Public Health, Den Haag – The Netherlands
Ref. : INCB-PSY 10/01 File : 141/1 NET
De : Herbert Schaepe, Secretary No. of pages : 1
International Narcotics Control Board
Subject : International control of the preparation "ayahuasca"
Vienna International Center P.O. Box 500, A-1400 Vienna, Austria
E-Mail : secretariat@incb.org Internet Address : http://www.incb.org/
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Dear M. Lousberg,
I would like to refer to your facsimile of 20 December 2000 concerning the traditional use of controlled substances, in particular the use of a preparation called "ayahuasca" by religious groups in the Netherlands.
The above mentioned issue was consulted by the INCB Secretariat with the Scientific Section and the Legal Advisory Section of the United National International Drug Control Programme (UNDCP). It is our understanding that "ayahuasca" is common name for a liquid preparation (decoction) for oral use prepared from plants indigenous to the Amazon basin of South America, essentially the stem bark of different species of a jungle vine (Banisteriopsis sp.) and the tryptamine-rich plant Psychotria viridis. According to the scientific literature, ayahuasca commonly contains a number of psychoactive alkaloids, including DMT which is a substance included in Schedule I of the 1971 Convention on Psychotropic Substances.
No plants (natural materials) containing DMT are at present controlled under 1971 Convention on Psychotropic Substances. Consequently, preparations (e. g. decoctions) made of these plants, including ayahuasca are not under international control and, therefore, not subject to any of the articles of the 1971 Convention.
Yours sincerely,
Herbert Schaepe
Secretary of the Board.